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[LOGO] EXHIBIT 3.3
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Industry Canada Industrie Canada
FORM 7 FORMULE 7
Canada Business Loi canadienne sur les RESTATED ARTICLES OF STATUTS CONSTITUTIFS
Corporations Act societes par actions INCORPORATION MIS A JOUR
(SECTION 180) (ARTICLE 180)
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1- Name of corporation Denomination de la societe
EXFO Electro-Optical Engineering Inc./EXFO Ingenierie Electro-Optique inc.
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2- The place in Canada where the registered office is to be situated Lieu au Canada ou doit etre situe le siege social
Quebec City Metropolitan Area Region metropolitaine de Quebec
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3- The classes and any maximum number of shares that the Categories et tout nombre maximal d'actions que la
corporation is authorized to issue societe est autorisee a emettre
Schedule A attached hereto is incorporated herein L'annexe A ci-jointe fait partie integrante du present
by reference as if herein set forth at length. formulaire.
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4- Restrictions, if any, on share transfers Restrictions sur le transfert des actions, s'il y a lieu
None Aucune
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5- Number (or minimum and maximum number) of directors Nombre (ou nombre minimal et maximal) d'administrateurs
Schedule B attached hereto is incorporated herein L'annexe B ci-jointe fait partie integrante du present
by reference as if herein set forth at length. formulaire.
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6- Restrictions, if any, on business the corporation may carry on Limites imposees a l'activite commerciale de la
societe, s'il y a lieu
None Aucune
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7- Other provisions, if any Autres dispositions, s'il y a lieu
Schedule C attached hereto is incorporated herein L'annexe C ci-jointe fait partie integrante du present
by reference as if herein set forth at length. formulaire.
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The foregoing restated articles of incorporation correctly set Cette mise a jour des statuts constitutifs demontre
out, without substantive change, the corresponding provisions exactement, sans changement substantiel, les
of the articles of incorporation as amended and supersede dispositions correspondantes des statuts constitutifs
the original articles of incorporation. modifies qui remplacent les statuts constitutifs
originaux.
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Signature Date FOR DEPARTMENTAL USE ONLY-
D-J M Y-A A L'USAGE DU MINISTERE SEULEMENT
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Title-Titre Filed-Deposee
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SCHEDULE "A"
ANNEXE "A"
DESCRIPTION OF SHARE CAPITAL
The Corporation is authorized to issue an unlimited number of Subordinate Voting
Shares, an unlimited number of Multiple Voting shares and an unlimited number of
Preferred Shares issuable in series of which 800,000 Preferred Shares Series I
are authorized for issuance, which shares shall carry the following rights,
privileges, conditions and restrictions:
1. SUBORDINATE VOTING SHARES AND MULTIPLE VOTING SHARES
The Subordinate Voting Shares and the Multiple Voting Shares (collectively
the "Equity Shares") include the following rights, privileges, conditions
and restrictions:
1.1 DIVIDENDS
Each Subordinate Voting Share and each Multiple Voting Shares confers,
subject to the rights of the holders of Preferred Shares, the right to
receive such dividends as the Board of Directors of the Corporation
may determine, but in an identical amount, at the same time and in the
same form (whether in cash, kind or otherwise) as if such shares were
of one and the same class.
1.2 SUBDIVISION OR CONSOLIDATION
No subdivision or consolidation of the Subordinate Voting Shares or
the Multiple Voting Shares may be made unless, simultaneously, the
Multiple Voting Shares or the Subordinate Voting Shares, as the case
may be, are subdivided in the same manner and, in such case, the
rights, privileges, conditions and restrictions then attached to the
Subordinate Voting Shares and the Multiple Voting Shares will also be
attached to the shares so subdivided or consolidated.
1.3 LIQUIDATION
In case of liquidation or dissolution of the Corporation or any other
distribution of its assets among its shareholders for the purpose of
winding up its business, whether or not in its own right, the holders
of Subordinate Voting Shares and the holders of Multiple Voting Shares
are entitled, subject to the rights of the holders of Preferred
Shares, to share equally amongst themselves, on a share-for-share
basis, the remaining property and assets of the Corporation available
for distribution to its shareholders, without preference or
distinction.
1.4 VOTE
The holders of Subordinate Voting Shares and the holders of Multiple
Voting Shares have the right to receive notices of any meeting of the
shareholders of the Corporation and to attend any such meeting and
vote thereat as a single class in respect of any matter on which the
shareholders of the Corporation are required to vote, except in the
case of a meeting at which only the holders of shares of a
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particular class or series are entitled to vote separately pursuant to
the Canada Business Corporation Act (the "Act") or the articles of the
Corporation. The Subordinate Voting Shares confer 1 vote per share and
the Multiple Voting Shares confer 10 votes per share.
1.5 MULTIPLE VOTING SHARE CONVERSION PRIVILEGE
Each outstanding Multiple Voting Share may, at all times and at the
option of the holder, be converted into one Subordinate Voting Share,
in accordance with the following terms and conditions:
1.5.1 the conversion privilege set out in this subsection 1.5 shall
be exercised by means of a written notice given to the transfer
agent of the Corporation and accompanied by the certificate or
certificates representing the Multiple Voting Shares in respect
of which the holder wishes to avail itself of such privilege.
Such notice shall be signed by the holder of the Multiple
Voting Shares in respect of which such privilege is exercised
or by its duly authorized representative and shall indicate the
number of Multiple Voting Shares the holder wishes to convert.
The holder shall also pay all government taxes or other duties
or income taxes that may be imposed in respect of such
conversion. The conversion of the Multiple Voting Shares into
Subordinate Voting Shares shall take effect as of the receipt
by the transfer agent of the Corporation of the notice of
conversion and the certificate or certificates representing the
Multiple Voting Shares in respect of which the holder wishes to
avail itself of the said conversion privilege; and
1.5.2 upon receipt of such notice and the certificate or
certificates, the Corporation will issue or cause to be issued,
with effect on the date of such receipt, a certificate or
certificates representing the outstanding Subordinate Voting
Shares, in accordance with the terms and conditions describes
hereinabove, in favour of the holder of such Multiple Voting
Shares, which may not from such time exercise its rights as a
holder of Multiple Voting Shares. If less than the aggregate of
the Multiple Voting Shares represented by a certificate is to
be converted, the holder shall be entitled to receive a new
certificate for the Multiple Voting Shares represented by the
original certificate and not converted.
1.6 RANK
Unless otherwise indicated in subsections 1.4 and 1.5, each
Subordinate Voting Share and each Multiple Voting Share confer the
same rights, are equal among themselves in all respects and will be
treated by the Corporation as if they were shares of a single class.
1.7 ADDITIONAL ISSUANCE OF MULTIPLE VOTING SHARES
Save for Multiple Voting Shares issued pursuant to subsection 1.2, no
Multiple Voting Share shall be issued unless such issuance has been
approved by a special resolution of the holders of Subordinate Voting
Shares at a special meeting of such holders convened for such purpose.
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2. PREFERRED SHARES
The Preferred Shares carry the following rights, privileges, conditions and
restrictions:
2.1 DIRECTORS' AUTHORITY TO ISSUE IN ONE OR MORE SERIES
The Board of Directors of the Corporation may issue the Preferred
Shares at any time and from time to time in one or more series. Before
the first shares of a particular series are issued, the Board of
Directors of the Corporation shall fix the number of shares in such
series and shall determine, subject to the limitations set out in
these Articles of Amendment, the designation, rights, privileges,
conditions and restrictions to be attached to the shares of such
series including, without limiting or restricting the generality of
the foregoing, the rate or rates, amount or method or methods of
calculation of preferential dividends, whether cumulative,
non-cumulative or partially cumulative, and whether such rate, amount
or method of calculation shall be subject to change or adjustment in
the future, the currency or currencies of payment, the date and place
of payment thereof, and the date or dates from which such preferential
dividends shall accrue, the redemption price and terms and conditions
of redemption, if any, the rights of retraction, if any, and the
prices and other terms and conditions of any rights of retraction and
whether any additional rights of retraction may be provided to such
holders in the future, the consideration and the terms and conditions
of any purchase for cancellation, if any, and the terms and conditions
of any share purchase plan or sinking fund with respect thereto, the
conversion price and the terms and conditions of conversion, if any.
Before the issue of the first shares of a series, the Board of
Directors of the Corporation shall send to the director under the Act,
Articles of Amendment containing a description of such series
including the designation, rights, privileges, conditions and
restrictions determined by the Board of Directors of the Corporation.
2.2 RANKING OF PREFERRED SHARES
The Preferred Shares of each series shall rank at par with the
Preferred Shares of every other series with respect to priority in the
payment of dividends, return of capital and in the distribution of
assets of the Corporation in the event of the liquidation or
dissolution of the Corporation or any other distribution of the assets
of the Corporation among its shareholders for the purpose of
winding-up its affairs, whether voluntary or involuntary. The
Preferred Shares shall have priority over the Multiple Voting Shares
and the Subordinate Voting Shares of the Corporation, with respect to
priority in the payment of dividends, return of capital and the
distribution of assets in the event of the liquidation or dissolution
of the Corporation, or any other distribution of the assets of the
Corporation among its shareholders for the purpose of winding-up its
affairs, whether voluntary or involuntary. If any cumulative dividends
or amounts payable on return of capital in respect of a series of
shares are not paid in full, the shares of all series of Preferred
Shares participate rateably in respect of accumulated dividends and
return of capital.
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2.3 PURCHASE FOR CANCELLATION
Subject to the provisions of the Act and the provisions attached to
any particular series of Preferred Shares, Preferred Shares of any
series, if so provided in the rights, privileges, conditions and
restrictions attached to such series, may be purchased for
cancellation or made subject to redemption at the option of the
Corporation or the holder thereof, at such time and at such prices and
upon such other terms and conditions as may be specified in the
rights, privileges, conditions and restrictions attaching to the
Preferred Shares of such series.
2.4 VOTING RIGHTS
Unless the Articles of Amendment otherwise provide with respect to the
creation and issue of a particular series of Preferred Shares, the
holders of Preferred Shares shall not be entitled to receive any
notice of or attend any meeting of shareholders of the Corporation and
shall not be entitled to vote at any such meeting; provided that at
any meeting of shareholders at which, notwithstanding the foregoing,
the holders of Preferred Shares are required or entitled by law to
vote separately as a class, each holder of Preferred Shares of any
series thereof shall be entitled to cast, in respect of each such
Preferred Share held, that number of votes which is equal to the
quotient obtained by dividing the stated capital account maintained
for all the outstanding Preferred Shares of such series by the number
of such outstanding Preferred Shares; provided that in respect of any
such consideration denominated in a currency other than Canadian, the
Board of Directors of the Corporation shall, for the purpose of this
Section 2.4, determine the appropriate conversion rate of such
currency to Canadian currency in effect on the date of issue and,
based on such rate, the Canadian dollar equivalent of such
consideration; and provided further that when such quotient is a
fraction or a whole number plus a fraction there shall be no right to
vote in respect of such fraction.
Any meeting of shareholders at which the holders of the Preferred
Shares are required or entitled by law to vote separately as a class
or a series shall, unless the Articles of the Corporation otherwise
provide, be called and conducted in accordance with the by-laws of the
Corporation; provided that no amendment to or repeal of the provisions
of such by-laws made after the date of the first issue of any of the
Preferred Shares by the Corporation shall be applicable to the calling
and conduct of meetings of holders of the Preferred Shares voting
separately as a class or as a series unless such amendment or repeal
has been theretofore approved by ordinary resolution adopted by the
holders of the Preferred Shares voting separately as a class.
3. PREFERRED SHARES SERIES 1
The first series of Preferred Shares shall consist of 800,000 shares and
shall be designated as Preferred Shares Series 1 (the "Preferred Shares
Series 1"). The rights, privileges, conditions and restrictions attaching
to the Preferred Shares Series 1 are as follows:
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3.1 DEFINITIONS
In these share conditions, the following words and phrases shall have
the following meanings:
3.1.1 "Aggregate Redemption Price" means the product obtained by
multiplying the number of outstanding Preferred Shares Series 1
by the Redemption Price.
3.1.2 "Conversion Price" means the dollar amount per Subordinate
Voting Share in Canadian dollars determined by reference to the
stock market on which the greatest volume of trading of the
Subordinate Voting Shares occurred during the 10 days of stock
market activity preceding November 30, 2000, as follows:
(i) by averaging the closing prices of the Subordinate Voting
Shares for such 10 days of stock market activity preceding
November 30, 2000; or
(ii) if the Subordinate Voting Shares have been traded fewer
than 5 days of the 10 days of stock market activity
preceding November 30, 2000, by averaging the following
prices determined for each of those 10 days:
a) the closing price or, if the closing price is not
published, the average between the highest and the
lowest prices, for each day that there has been
trading; and
b) the average of the bid and ask prices for each day on
which there was no trading.
3.1.3 "Higher Rank" or " Equal Rank" and similar expressions, whether
used individually or collectively, shall mean the order of
priority of the shares of different classes or series as
regards the payment of dividends or the distribution of assets
in the event of the winding-up, dissolution or abandonment of
the business of the Corporation, whether or not voluntary, or
in the event of any other repayment of capital or distribution
of the assets of the Corporation among its shareholders for
purposes of winding up its affairs.
3.1.4 "Redemption Price" means, for each Preferred Share Series 1,
$1.00.
3.2 VOTING RIGHTS
Subject to the Act, the holders of the Preferred Shares Series 1 shall
not, as such, be entitled to receive notice of or to attend any
meeting of the shareholders of the Corporation or to vote at any such
meeting.
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3.3 DIVIDENDS
The holders of the Preferred Shares Series 1 shall not be entitled to
receive, any dividend nor be entitled to participate any further in
the distribution or payment of profits or assets of the Corporation.
3.4 PURCHASE
Subject to the Act, the Corporation shall have the right at its option
at any time and from time to time, pursuant to tenders received upon
request therefor addressed to all holders of Preferred Shares Series
1, to purchase the whole or any part of the Preferred Shares Series 1
at the lowest price for which, in the opinion of the Board of
Directors, such shares are obtainable, but not exceeding a sum equal
to the Redemption Price for each issued and outstanding Preferred
Shares Series 1, provided that if, in response to such invitation for
tenders, 2 or more shareholders submit tenders at the same price and
if such tenders are accepted by the Corporation, in whole or in part,
then unless the Corporation accepts all such tenders in whole, the
Corporation shall accept such tenders in proportion as nearly as may
be to the number of shares offered in each such tender. From and after
the date of such purchase, all Preferred Shares Series 1 so purchased
shall be cancelled.
3.5 MANDATORY REDEMPTION
Subject to the Act, the Corporation shall have the right to redeem, on
November 30, 2000 (the "Redemption Date"), all outstanding Preferred
Shares Series 1 on payment to their holders of their Aggregate
Redemption Price. The Corporation shall give to each registered holder
of Preferred Shares Series 1 a written notice of redemption (the
"Notice of Redemption") or send such notice by mail to the last known
address of the holder. The Notice of Redemption shall inform the
holders of Preferred Shares Series 1 of the redemption of their
Preferred Shares Series 1 on the Redemption Date and shall be given no
less than 5 days prior to the Redemption Date. Any holder may waive
receipt of a Notice of Redemption. On the Redemption Date, the
Preferred Shares Series 1 redeemed shall be cancelled automatically
and their holders shall have the right, upon delivery to the
Corporation at its principal office during its usual business hours of
the certificate or certificates representing the Preferred Shares
Series 1 so redeemed duly endorsed, to the payment of the Aggregate
Redemption Price of their Preferred Shares Series 1 (less any taxes
which must be deducted or withheld in respect thereof). Payment shall
be made by cheque. At any time after the Notice of Redemption has been
given, the Corporation shall be entitled to deposit the amount of the
Aggregate Redemption Price of the Preferred Shares Series 1 (less any
taxes which must be deducted or withheld in respect thereof) in one or
more chartered banks or trust companies within Canada who shall have
been named in the Notice of Redemption. Such deposits shall be made in
one or more special trust accounts for the benefit of holders of
Preferred Shares Series 1 redeemed, and the amounts owing to them
shall be paid by such banks or trust companies upon remittance of the
certificate or certificates representing the Preferred Shares Series 1
so redeemed duly endorsed. Once these deposits have been made, the
Preferred Shares Series 1 shall be deemed to have been redeemed on the
Redemption Date. After the Corporation has effected a deposit in the
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aforementioned manner with respect to any of the Preferred Shares
Series 1, as of the Redemption Date, holders of such shares shall not
have any further rights as shareholders with respect to such shares
and their rights shall be limited to the collection of the portion of
the deposited amounts applicable to such shares, without interest
(less any taxes which must be deducted or withheld in respect of said
amount); any accrued interest on such deposits shall belong to the
Corporation.
3.6 CONVERSION AT OPTION OF CORPORATION
On November 30, 2000 (the "Conversion Date"), the Corporation shall,
if it has elected not to redeem the Preferred Shares Series 1,
pursuant to Section 3.5 above, convert all outstanding Preferred
Shares Series 1 into Subordinate Voting Shares. The number of
Subordinate Voting Shares to which is entitled a holder of Preferred
Shares Series 1 shall be equal to the result obtained by dividing the
Aggregate Redemption Price of the Preferred Shares Series 1 held by
such holder by the Conversion Price. No fractional Subordinate Voting
Shares shall be issued upon the conversion of the Preferred Shares
Series 1. In lieu of any fractional shares to which the holder would
otherwise be entitled, the Corporation shall pay a cash amount equal
to such fraction multiplied by the then effective Conversion Price. On
the Conversion Date, the Preferred Shares Series 1 converted shall be
cancelled automatically and their holders shall have the right to
receive, upon delivery to the Corporation at its principal office
during its usual business hours of the certificate or certificates
representing the Preferred Shares Series 1 so converted duly endorsed,
a certificate or certificates representing the number of Subordinate
Voting Shares resulting from the conversion of the Preferred Shares
Series 1 together with the cash amount payable as a result of
conversion into fractional Subordinate Voting Shares (less any taxes
which must be deducted or withheld in respect thereof). Payment of
cash amounts shall be made by cheque. The Corporation shall be
entitled to deposit the certificates representing the number of
Subordinate Voting Shares resulting from the conversion of the
Preferred Shares Series 1 together with the cash amounts payable as a
result of conversion into fractional Subordinate Voting Shares (less
any taxes which must be deducted or withheld in respect thereof) in
one or more trust companies within Canada who shall have been named in
a written notice sent by mail by the Corporation to the last known
address of each registered holder of Preferred Shares Series 1. Such
deposits shall be made in one or more special trust accounts for the
benefit of holders of Preferred Shares Series 1 converted, and the
certificates representing the Subordinate Voting Shares to which they
are entitled and the cash amounts owing to them shall be remitted by
such trust companies upon remittance of the certificate or
certificates representing the Preferred Shares Series 1 so converted
duly endorsed. Once these deposits have been made, the Preferred
Shares Series 1 shall be deemed to have been converted on the
Conversion Date. After the Corporation has effected a deposit in the
aforementioned manner with respect to any of the Preferred Shares
Series 1, as of the Conversion Date, holders of such shares shall not
have any further rights as holders of Preferred Shares Series 1 with
respect to such shares; any accrued interest on the cash amount
deposits shall belong to the Corporation.
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3.7 DISTRIBUTION RIGHTS
In the event of the liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary, the holders of the
Preferred Shares Series 1 shall be entitled to receive, before any
distribution or payment of any part of the assets of the Corporation
among the holders of Multiple Voting Shares and Subordinate Voting
Shares, an amount equal to the Redemption Price of their shares and no
more.
3.8 VETO
No class of shares of an Equal Rank or of a Superior Rank with the
Preferred Shares Series 1 may be created, and the provisions relating
to the Preferred Shares Series 1 or relating to other classes of
shares may not be modified so as to confer on such shares rights or
privileges that are of Equal Rank or of Superior Rank to those
attached to the Preferred Shares Series 1, unless such creation or
modification has been approved by a special resolution of the holders
of Preferred Shares Series 1 at a special meeting of such holders
convened for such purpose.
3.9 INTERPRETATION
3.9.1 All amounts set forth in these presents are expressed in
Canadian dollars and all amounts required to be converted into
Canadian dollars shall be deemed to be converted into or from
Canadian dollars at the noon buying rate of the Federal Reserve
Bank of New York on the date as of which such conversion is
determined.
3.9.2 Notwithstanding any provision to the contrary set forth in
these presents, the payment of any sum of money may be made by
electronic transfer or by any other means which the Board of
Directors may approve, instead of being made by cheque. In such
an event, the payment of sums of money to holders of Preferred
Shares Series 1 shall be deemed to constitute payment and shall
release the Corporation from all its obligations with respect
to the payment of such sums, up to the amount represented
thereby, unless the payment is not honoured by the Corporation.
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SCHEDULE "B"
ANNEXE "B"
NUMBER (OR MINIMUM AND MAXIMUM NUMBER OF DIRECTORS)
The minimum number of directors shall be 3, and the maximum number of directors
shall be 12. Moreover, directors shall be authorized to appoint one or more
directors (in addition to the number of directors elected at the last annual
meeting of shareholders) who shall hold office for a term expiring not later
than the close of the next annual meeting of shareholders, but the total number
of directors so appointed may not exceed one third of the number of directors
elected at the previous annual meeting of shareholders.
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SCHEDULE "C"
ANNEXE "C"
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OTHER PROVISIONS AUTRES DISPOSITIONS
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1. Borrowing Power 1. Pouvoir d'emprunt
The directors may, when they deem expedient, Les administrateurs peuvent, lorsqu'ils le jugent
by way of ordinary resolution and without opportun, par voie de resolution ordinaire et
having to obtain authorization of the sans avoir a obtenir l'autorisation des
shareholders: actionnaires:
1.1 borrow money on the credit of the Corporation; 1.1 contracter des emprunts, compte tenu du
credit de la societe;
1.2 issue bonds or other securities of the 1.2 emettre des obligations ou autres valeurs
Corporation and give them in guarantee or sell de la societe et les donner en garantie ou
them for such prices and such sums as may be les vendre pour les prix et sommes juges
deemed expedient; convenables;
1.3 subject to Section 44 of the Canada Business 1.3 sous reserve de l'article 44 de la Loi
Corporation Act (R.S.C., 1985, c. C-44), give canadienne sur les societes par actions
a guarantee on behalf of the Corporation to (L.R.C. (1985), ch. C-44), garantir, au nom de
secure performance of an obligation of any la societe, l'execution d'une obligation a la
person; charge d'une autre personne;
1.4 mortgage, hypothecate, pledge or otherwise 1.4 grever d'une surete, notamment par hypotheque,
create a security interest in all or any tout ou partie des biens, presents ou futurs,
property of the Corporation, owned or de la societe, afin de garantir ses
subsequently acquired, to secure any obligations; et
obligation of the Corporation; and
1.5 delegate one or any of the foregoing powers to 1.5 deleguer un ou plusieurs des pouvoirs
a director, a committee of directors or an susmentionnes a un administrateur, a un comite
officer of the Corporation. d'administrateurs ou a un dirigeant de la
societe.
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